Miami-Dade judge allows video testimony from Cuba in a DUI manslaughter trial and he says he is guilty not the defendant.

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Miami-Dade judge allows video testimony from Cuba in a DUI manslaughter trial and he says he is guilty not the defendant.

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Prosecutors say Orlier Suarez Albo was staggeringly drunk and behind the wheel of a BMW when he plowed into another car, killing a woman and severely injuring her husband in Hialeah in 2012.

But six years after the crash, a surprise witness came forward to claim he was actually the one behind the wheel.

The defense witness, a supposed out-of-town visitor named Alex Diaz, claimed he ditched the car, avoided police and left Miami for good. But Diaz did not return to take the blame. Instead, a Miami judge allowed jurors to hear his testimony taken in Cuba — via the video feature of the popular messaging service WhatsApp.

“If I was there, right now, I’d turn myself in,” Diaz, 48, testified in in glitchy video bathed in shadows and set to a loud and persistent microphone drone.

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“Why didn’t you turn yourself in at the time?” prosecutor Nardia Haye asked.

Whatever Diaz replied was unintelligible.

Alex Diaz provides testimony from Cuba in a video for a trial involving a DUI manslaughter case on Aug. 17, 2018.

CHARLES TRAINOR JR ctrainor@miamiherald.com

In a highly unusual move, Miami-Dade Circuit Judge Marisa Tinkler Mendez allowed the low-quality video testimony, despite protests from prosecutors, who insisted that Diaz was concocting the story and could never be held accountable if he’s lying under oath, because Cuba has no extradition treaty with the United States — or for the crash if he’s actually telling the truth.

“You know you don’t face any consequences for lying because you’re not coming back to the United States, are you?” Haye asked on the video.

“I don’t have money to return to the United States,” Diaz said.

“You’re protected in Cuba,” Haye said.

“I wish extradition existed,” he claimed.

Suarez, 33, is facing up to 50 years in prison if convicted of DUI manslaughter, DUI with serious bodily injury and leaving the scene of an accident involving death. He rejected a plea deal of some 15 years in prison.

Suarez moved from Cuba to Miami, where he met his wife and had two children. After his arrest in the car crash case, he bonded out from jail and eventually fled to Mexico and Cuba for several years before he was caught trying to return to the United States through the Mexican border.

The victims in his case: Lisett Betancourt, 41, who died in the crash, and her husband, Roberto Domingo Borbon Fundora, 54, who suffered serious injuries. The couple was in their silver Saab on West Fourth Avenue at 1:30 a.m. April 8, 2012.

Suddenly, a black BMW 750i ran a red light at West 29th Street, plowing into the car. Betancourt later died at Hialeah Hospital. Borbon remained in a coma for four months.

Hialeah police said two men in the black BMW ran off and were caught after brief chases by cops. Suarez’s passenger, Luis Gonzalez, told cops he was asleep in the back seat of the car. Blood tests showed Suarez had a blood-alcohol level nearly three times the legal limit about 90 minutes after the crash.

Borbon, after he emerged from his coma, later identified Suarez as the man behind the wheel of the car that killed his wife. Borbon also testified at trial. Surveillance video also showed the crash.

Defendant Orlier Suarez has his tie adjusted by defense attorney Carlos Gonzalez before the trial in DUI manslaughter trial, August 17, 2018.

CHARLES TRAINOR JR ctrainor@miamiherald.com

It was not until earlier this year that Suarez’s defense lawyer revealed the presence of Diaz, the surprise witness who claimed to be the third person in the car. A defense investigator claimed to have tracked him down in Cuba, and the legal team asked his testimony be “perpetuated” — recorded and played at trial.

Diaz claimed he was in Miami for one month visiting his brother, and left for Cuba soon after the crash. Federal investigators could not verify any records of his travel to the United States.

A farm worker in rural Cuba, Diaz said through a Spanish-language interpreter that he was drinking with Suarez at a Hialeah bar called Los Melones. When he saw Suarez and Gonzalez were too drunk, he claimed, he took the keys, put the men in the car and started to drive.

“I took the steering wheel and I drove off,” he told defense lawyer Carlos Gonzalez in the video testimony. “A few minutes later, I felt the impact. I don’t know exactly what happened.”

It is not unusual for witnesses who can’t attend a criminal trial to have their testimony pre-recorded, usually with good quality video cameras and with the lawyers from both sides present. Usually, the witnesses are in a different U.S. city, or maybe a country with friendly relations with the United States.

But Cuba is a different issue, and Miami-Dade prosecutors fought the request at every turn.

They pointed to a Florida Supreme Court decision that allowed for remote video testimony only if the oath sworn by a witness “can be subjected to prosecution for perjury upon making a knowingly false statement” — and the witness can be extradited from their country.

But Tinkler Mendez allowed the testimony to be recorded several months before trial.

The unusual video testimony was the latest in a series of interactions between the U.S. criminal justice system and Cuba. For decades such cooperation has been virtually non-existent.

But there have been signs of change.

Last week, Cuban authorities detained a man accused of eco-terrorism in the U.S. Pacific Northwest. The Cubans put Joseph Mahmoud Dibee, 50, who had been on the run for 12 years, on a plane and returned him to the United States.

And in a stunning case, U.S. prosecutors tried a Cuban man in Cuba for a murder that took place in Palm Beach County — a first-of-its-kind case that drew surprise and concern from observers in the U.S. legal system. As first reported by the Miami Herald on Thursday, the suspect was convicted in a Cuban court and sentenced to 20 years, to be served in a Cuban prison.

Prosecutor Haye, speaking Friday in a last-ditch appeal to the judge, said Diaz’s video testimony was of such poor quality that it was unfair to the state. The video of Diaz testifying in front of a white drape of some sort often froze. The witness often did not hear the questions, and his answers were sometimes unintelligible.

At one point, Haye wanted to show Diaz photos of the crime scene — to poke holes in his knowledge of the details of the case. But Diaz could not see them. So the photos were sent to the WhatsApp account being used by the defense investigators in Cuba.

“This would be an injustice to allow this unreliable testimony to be played to the jury,” Haye told the judge, adding: “Frankly, I don’t think the state had a meaningful opportunity to question the witness about the photographs.”

The judge conceded the witness didn’t get a good look at the photos, but that Suarez still deserved to have his witness called — and it was up to the state to convince the jury that Diaz was unreliable.

“It would be an error for me to exclude the testimony,” Tinkler Mendez said. “I think it would be a reversible error.”